June 2016

Second Court of Appeals Holds that Satanic Cell Phone Photos Were Relevant Character Evidence in Punishment Phase for Attempted Capital Murder Case

 

Pantoja v. State (2nd Court of Appeals - Fort Worth, 2016)

A Cocaine-Fueled Binge Leads to an Attack

During an alcohol and cocaine-fueled binge, nineteen-year-old Rigoberto Pantoja attacked a group of friends in Mansfield, Texas one evening in September of 2014. After watching the Floyd Mayweather fight, Pantoja began talking to himself. Eventually, he pulled a gun and fired two times, hitting Pantoja’s friend in the face. Pantoja put the gun to the head of a second friend, but when the gun would not fire, Pantoja pulled a knife, stabbing the friend three times. He also stabbed a third friend. All of the victims survived the injuries. Pantoja was arrested and charged with aggravated assault and attempted capital murder.

At trial, Pantoja pled guilty to the aggravated assault and attempted capital murder charges before a judge. Pantoja requested a jury for the punishment phase of his trial, asking that the jury grant him community supervision (probation). At the punishment phase, the State called twelve character witnesses; Pantoja’s defense counsel called four, including his father who was set to testify about Pantoja’s Catholic upbringing and religious way of life.

Just before the defense called Pantoja’s father to the stand, and out of the presence of the jury, the State indicated to the Court that it intended to cross-examine Pantoja’s father about satanic images found on Pantoja’s cell phone, confiscated the night he was arrested. The Judge told the State to proceed with calling witnesses and that “whenever you are ready to ask question [regarding the satanic photos], approach up here and then I’ll make a ruling at that time.” After that conversation, the jury returned to the courtroom.

Cross-Examination Regarding the Defendant's Cell Phone Images

The defense called Pantoja’s father who testified to Pantoja’s good nature. He said that his son helped around the house and helped out with the family’s living expenses. Pantoja’s father also spoke of his son’s strong Catholic faith and upbringing. The defense admitted photos from the father of Pantoja’s first communion, photos of Pantoja’s bedroom with a Virgin of Guadalupe poster on the wall, and photos of Pantoja’s car depicting a rosary hanging from the rearview mirror. The State cross-examined Pantoja’s father, asking, “Were you aware that your son kept pictures of satanic worship on his cell phone?” The father responded, “no.”

The jury assessed Pantoja’s punishment at eighty years’ confinement for both offenses, denying Pantoja’s request for community supervision. Pantoja timely appealed to the Second Court of Appeals, arguing that the satanic photos shown to the jury were highly prejudicial, had no probative value whatsoever, did not establish a material fact that related to any element of his offenses, and ultimately were not relevant to his case and sentencing.

Did the Trial Court Err By Allowing the Satanic Images to Go Before the Jury?

The Second Court of Appeals had to determine whether the trial court should have stopped the State’s cross-examination of Pantoja’s father regarding the Satanic images found on Pantoja’s cell phone. Did the photos have relevance to the case under the Texas Rules of Evidence? If so, were the photos highly prejudicial to the jury?

The Texas Rules of Evidence

Relevancy

Article 37.07 of the Texas Code of Criminal Procedure states that, “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including…his character [and] an opinion regarding his character…” Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a)(1) (West Supp. 2015). Evidence is relevant to a punishment determination if that evidence will assist the fact-finder in tailoring an appropriate sentence. Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.]2000, pet. ref’d.

Community Supervision

When a defendant requests community supervision, a trial court may reasonably deem any character trait that pertains to the defendant’s suitability for community supervision to be a relevant matter for the sentencer to consider. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008).

Character Evidence and Opinion Testimony

When character evidence is admissible—as in a community supervision request during the punishment phase—such character traits may be proven by testimony in the form of an opinion. Tex. R. Evid. 405(a); Wilson v. State, 71 S.W.3d 346, 349-51 (Tex. Crim. App. 2002). An opinion witness is generally to be asked “did you know” questions. Id. at 350.

Cross Examination of Character Witnesses

On cross-examination of a character witness, inquiry may be made about specific incidents of a person’s conduct, subject to the following limitations. Id. at 351.

1. The incident must be relevant to the character traits at issue. Burke v. State, 371 S.W.3d, 252, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d, untimely filed).
2. The alleged Bad Act must have a basis in fact. Id.
3. Before the questions are asked, the foundation for asking the question should be laid outside of the jury’s presence, so that the judge will have an opportunity to rule on them. Id.

The Second Court of Appeals Finds No Error

Here, the Court says that the father’s testimony about Pantoja’s strict Catholic upbringing and religious faith constituted “opinion” character testimony. Additionally, the Court says, his testimony was relevant under the Texas Rules of Evidence, pertinent to the request made for community supervision, as “a sentencer might rationally want to take into account testimony of his good character and that he had a stable home life…and that he possess an indicia of a religious upbringing.”

Further, this character testimony was provided by the defense. Because the defense called the father as a character witness, the State had the right to cross-examine the father "through did-you-know questions" about Pantoja’s character. "The State had the proper predicate for it’s 'did you know' question by establishing outside the presence of the jury the factual basis for the specific instances of Pantoja’s conduct (the satanic cell phone photos)." The Court overruled Pantoja’s appeal, and affirmed the trial court’s judgment.

The Best Laid Plans of Mice and Men: What Happens When a Robbery Accomplice Goes Rogue?

Davis v. State (2nd COA, 2016)

Davis v. State is a case about two robberies— one a planned robbery of a convenience store, and the other of the customer inside the convenience store, a spur of the moment decision. What happens when accomplices to a well-planned robbery go “rogue” and commit additional crimes that are not part of the original plan?  Who is on the hook for their actions?

The Robbery That Didn’t Go According to Plan

Desmond Davis and two accomplices planned to rob a convenience store at night. Around 9:30pm, Davis entered the store alone and chatted with a customer. Moments later, two accomplices entered the store, pointing loaded guns at the cashier and the customer. The accomplices decided to rob the customer first, despite Davis’s instructions not to do so, “we just [came] for the store.” Davis jumped over the cash register and took money from the cash drawer. The customer dropped his cash to the floor and ran to the store’s restroom, locking the door behind him. The gunmen fled with the cash from the store and from the customer. Once the coast was clear, the store employee called 911 and locked the doors. The entire robbery was captured on a security camera. The three robbers split all of the cash among themselves after the robbery.

Shortly after Davis’s arrest, police obtained a confession after the detective told Davis, more or less, that not only could his confession be used for or against him, but that it could be used for or against him at trial. During the interrogation, the detective asked Davis to “man up” and give his side of the story, admitting his own guilt. Davis eventually made a written statement to law enforcement, admitting to his role in planning and carrying out the robbery. The interrogation and confession were captured on video.

The Case Goes to Trial - Davis is Tried for the Original Planned Robbery and the Unplanned Actions of his Cohorts

At trial, the jury convicted Davis on two counts of aggravated robbery with a deadly weapon—one count for the convenience store and one count for the customer. Davis was assessed a punishment of 30 years (for one count) and 15 years (for the other count) and a $1,000.00 fine for each count.

On appeal, Davis argued that his instructions to the accomplices not to rob the customer defeated the theft element of that robbery and thus, the record is insufficient to show his participation in the aggravated robbery of the customer specifically. Further, Davis argues that his confession was obtained under duress, in violation of the Texas Code of Criminal Procedure.

The issue before the Second Court of Appeals was to determine whether, in addition to the robbery of the store, Davis also participated in the robbery of the customer, and, whether Davis’s written confession obtained by police violated section 38.22 of the Texas Code of Criminal Procedure.

The Law in Texas - Robbery and Confessions

Robbery is an assaultive offense, where the assaultive conduct is the essence of the crime, not the theft in and of itself. Ex Parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). In robbery prosecutions, the number of persons assaulted is at issue, not the number of thefts in one crime episode. Id.

Section 38.22 of the Texas Code of Criminal Procedure

When law enforcement securing a defendant’s written confession tells the defendant that the confession “could be used for or against him in court” or "for and against him in court" and that "they might go easy on him if he confessed," the written confession becomes inadmissible because it violates section 38.22 of the Texas Code of Criminal Procedure. Sterling v. State, 800 S. W.2d, 513, 518-519 (Tex. Crim. App. 1990). Section 38.22 of the Code deals with admissibility of written confessions in court.

The Second Court of Appeals Affirms the Judgment of the Trial Court

Here, the robbers intended on stealing the money from the cash register when two of the gunmen pointed their weapons at an innocent customer and stole his money. Based on this alone, the Court says, the evidence is sufficient to support the jury’s determination “that [Davis] intended to steal the store’s money and that the [accomplices] threatened the customer while they were stealing money from the [store].” Further Davis and the accomplices shared all of the money stolen in that crime episode—there was no effort made to distribute the customer’s money to only the two accomplices. Davis participated in the store robbery. Even though he told his accomplices to not rob the customer, Davis still placed the customer in fear by waving firearms and by jumping over the counter to steal money out of the register.

Additionally, after the Court reviewed the interrogation tape, the Court “determined that the “officer told [Davis] that he had an opportunity to tell his side of the story and that he could be a man by admitting his guilt.” The officer never suggested to Davis that he would be helping his court case by admitting his guilt. The confession was, therefore, not obtained in violated of Section 38.22 of the Texas Code of Criminal Procedure.

The Court acknowledges that caselaw, such as James v. State, exists that holds that a “defendant who was merely present when his [accomplice] assaulted another was not guilty of robbery…because there was no evidence of a previous agreement to rob the [bystander],” such is not exactly the case here. James v. State, 161 S.W.2d 285, 286 (Tex. Crim. App. 1942). Davis saw the robbery of the customer taking place, and then decided to capitalize on the level of fear created to jump over the counter “and grab some money for himself.”